Looting and unrest in the past has caused some substantial loss and damage to people’s livelihoods, to the greater economy and also causes financial loss to Contractors and Clients.

These events certainly impact on construction activities in South Africa, whether directly or indirectly.

The crisp question then arises, how does one deal with the impact of the looting and unrest in the context of a construction contract that was concluded in the ambit of the General Conditions of Contract for Construction Works, Third Edition, 2015 (or “GCC2015”)?

The GCC 2015 provides for Excepted Risk events.  These are risk events which the Contractor is not responsible for, which events are outside of the control of the Contractor and the Employer (the Client), and when such an event does occur, then the Contractor’s remedy is available under the provisions of Clause 10.1 (the claims procedure clause) as read with Clause 8.3 (Excepted Risks) and Clause 5.12 (Extension of time for Practical Completion).  In the JBCC and the FIDIC contracts it is dealt with as a Force Majeure event.

What is then the burden of proof on the Contractor to institute a claim in terms of Clauses 10.1, 5.12 and 8.3 of the GCC 2015?

Firstly, the event must fall within the list of excepted risk events as listed under Clause 8.3 of the GCC 2015.  We are of the considered opinion that this part of the enquiry is the easiest one to overcome as the events certainly should fall within the definitions of “commotion, disorder,…., sabotage or any form of civil disturbance”.

Secondly, the Contractor must prove that “damage or physical loss or any other loss” was incurred directly or indirectly as a result of the “commotion, disorder,…., sabotage or any form of civil disturbance”, viz the looting and the unrest that occurred.

Thirdly, the Contractor must be able to prove that he suffered a delay to achieving Practical Completion and/or proven additional costs, as a result of the Excepted Risk event.  It may be that the progress of the Works at the Site was not directly affected, but that the looting and unrest in Durban, for sake of one example, had caused the Contractor to suffer some form of a financial loss due to an impact in the supply of materials or Plant that may have been in transit, but could not be transported from Durban to the Site.

The burden of proof on the Contractor will then be to prove the additional costs that were incurred, as matter of fact (and not theory), due to the Excepted Risk event.

Clause 5.12 of the GCC 2015 further imposes an obligation to prove how achieving Practical Completion by the due date, was delayed, as matter of fact, in the event that the progress of the Works were delayed by the events that occurred.

Moreover, the Contractor must also, mots importantly, comply with the provisions of Clause 10.1 of the GCC 2015 and follow and comply with the requirements of submitting a competent claim.

The GCC 2015 therefore, in our considered opinion, within the standard provisions of Clause 10.1 and 8.3 of the GCC 2015, allow for “looting” and “unrest” as claimable events, provided that the provisions of Clause 8.3 have not been amended to pass the risk to the Contractor.  It therefore depends on the written contract entered into between the Parties and that the standard provisions of the GCC 2015 have not been amended.